Coach Bush is 3-23 In Real Courts On Gitmo Show Trials; Katyal, The Hero Of Hamdan, To Join Obama Administration

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If your local football coach was 3 wins and 23 losses for the season, you could rest assured of two things; one, you are a Detroit Lions fan and, two, the coach is getting fired. Well, there was an interesting little article that was published in today’s New York Times, and the upshot is that 3 and 23 is exactly what the Bush/Cheney regime’s record is when their Guantanamo Detainee cases see the sunshine of a real court. Clearly we have pretty much been endlessly detaining a lot of innocuous people on unsubstantiated evidence.

Describing the release last weekend of Haji Bismullah, an Afghan detainee held at Guantánamo Bay for nearly six years, the Times notes:

The decision was part of a pattern that has emerged in the closing chapter of the administration. In the last three months, at least 24 detainees have been declared improperly held by courts or a tribunal — or nearly 10 percent of the population at the detention camp in Guantánamo Bay, Cuba, where about 245 men remain.
…
While Mr. Bismullah’s case was decided by a military panel, the rulings for the other 23 detainees occurred in habeas corpus hearings in federal court. Since a Supreme Court decision in June gave detainees the right to have their detentions reviewed by federal judges in habeas cases, the government has won only three of them.

Get that?? 3 and 23. Not. Real. Good. Certainly puts the lie to Cheney and Bush’s promises that they were holding only the "worst of the worst" after all these years doesn’t it?

The cases provide a snapshot of the intelligence collected by the government on the suspects and suggest that there was little credible evidence behind the decision to declare some of the men enemy combatants and to hold them indefinitely.
…
“The government’s failure in case after case after case to be able to prove its case calls into question everybody who is there,” said Susan Baker Manning, a lawyer for 17 Uighur detainees from western China who were ordered released by a federal judge in October. The Justice Department has appealed that order from a federal district judge, Ricardo M. Urbina, and the men are still at Guantánamo.

Well, I guess, as shocking as it is, this is not exactly breaking news anymore. The brittle patina of legitimacy and credibility, to the extent there ever was any, began to crack with the first major Read more →

The US Torture Regime – Where Is The Swift Justice?

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Earlier, Marcy and Spencer wrote about the somewhat startling admission today by Susan Crawford that the United States tortured Mohammed al-Qahtani. From Woodward and the Washington Post:

"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that’s why I did not refer the case" for prosecution.

The entire article is worth a read just so that the bare facts of what the United States does in your name can set in. But the real thing that strikes me about Crawford’s admission is the unequivocal starkness of it. "We tortured". "Met the legal definition of torture".

Well okay then. What more could we ask for? Maybe that the statement was made by a Bush Administration official, in a position of authority, someone that actually speaks for and might could bind the government to the admission. Well, as convening authority for the military commissions, Susan Crawford darn well ought to suffice for that.

Sounds like what we have here is what the legal profession, and specifically the criminal justice portion thereof, calls an "admission against interest".

An admission against interest is an exception to the hearsay rule which allows a person to testify to a stament of another that reveals something incriminating, embarassing, or otherwise damaging to the maker of the statement. It is allowed into evidence on the theory that the lack of incentive to make a damaging statement is an indication of the statement’s reliability.

In criminal law, it is a statement by the defendant which acknowledges the existence or truth of some fact necessary to be proven to establish the guilt of the defendant or which tends to show guilt of the defendant or is evidence of some material fact, but not amounting to a confession.

Tonight, on MSNBC’s Countdown, former Navy JAG attorney Charles Swift laid out the background and implications of what our country has done and become (Attached are both the portion with Charlie Swift as well as a followup portion). What we have done is not good. It is not right. And it is not justified. It is a war crime under 18 USC § 2441.

For her next trick, perhaps Susan Crawford can tell us when the war crime prosecutions will be starting.

What about Abu Zubaydah?

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While I’m glad that Susan Crawford has acknowledged publicly what we all know–that Mohammed al-Qahtani was tortured (see Spencer’s take here)–I’m just as interested in the questions that "crack reporter" Bob Woodward didn’t ask.

Such as, "Is that the same reason Abu Zubaydah was not charged along with the other 9/11 plotters?"

The answer to that question might raise all sorts of uncomfortable answers, though. After all, Qahtani was not in the same category as the other 9/11 plotters, in either the treatment he received (since it came at Gitmo rather than in black sites overseas, and came while under DOD custody rather than CIA custody), or in his actions (that is, he was stopped short of participating in 9/11, if that was indeed his intent). 

But Abu Zubaydah’s treatment resembles Khalid Sheikh Mohammed’s: while in CIA custody at a black site, he was waterboarded, not just once, but a bunch of times.

So if you admitted that Abu Zubaydah had been tortured–and therefore could not be tried–then it would raise questions about why KSM can be charged.

And if those questions were asked, you might have to differentiate between KSM and Zubaydah. KSM–as was made clear in his appearance in the Gitmo show trials–still has his wits about him. Zubdaydah, from all reports, does not.

Or, just as importantly, KSM will happily admit to having done the things we accuse him of. But Zubaydah appears to have been over-sold as the mastermind of the attacks. In fact, if you admitted that Abu Zubaydah admitted to stuff he didn’t really do after having been broken through torture, then you’d have the beginning of the pattern–with Qahtani and Zubaydah–proving that torture doesn’t work.

I’m glad Susan Crawford has finally admitted that we tortured Qahtani and because of that he can’t be charged. But will she have the courage (and the clearance) to admit that about Abu Zubaydah, too?

It’s Called Justice

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Not only did Michael Mukasey, in his most reasonable act as AG, refuse to act on Bush’s request that he help Ohio Republicans prevent 200,000 voters from voting.

But now, the military judge in charge of Hamdan’s Show Trial has refused the Bush Administration’s request that the jury re-sentence Hamdan so he won’t be released on Bush’s watch. 

A military judge rejected a Bush administration move to that could have kept Osama bin Laden’s former driver locked up for an additional five years.

[snip]

In a two-paragraph order, [Judge Keith Allred] said he had read the filings and legal citations, as well as reviewing the sentencing hearing transcript.

"The prosecution motion to reconsider, reassemble, reinstruct and re-announce a sentence is denied," he wrote.

I guess Poppy and Dick never told you this whole all-powerful bullshit would end as soon as you became a lame duck, huh, Bush?

Another 16 Words: Boumediene Bites Bush Again

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images3.thumbnail.jpegLaura Rozen rocks, and today she rolls up more jaw dropping malevolence and fraud on the part of the Bush/Cheney Administration.

A potentially explosive new court filing by the lawyers for Lakhdar Boumediene and five other Guantanamo detainees suggests that the Bush administration ordered the Bosnian government to arrest and hold the men after an exhaustive Bosnian investigation had found them innocent of any terrorism related activity and had ordered their release, in order to use them as props in Bush’s January 2002 State of the Union speech.

The filing–"Lakhdar Boumediene, et al., Petitioners, v. George W. Bush, President of the United States, et al., Respondents, Petitioners’ Public Traverse to the Government’s Return to the Petition for Habeas Corpus"–lays out the case that the Bush administration threatened at the highest levels to withdraw diplomatic and military aid to the Balkan nation if Bosnia released the men, which its own three-month investigation had found innocent of any terrorism charges in the days leading up to Bush’s January 2002 State of the Union.

Faced with the threats of the withdrawal of aid and that if it released the men, the White House would order NATO troops to detain them, Bosnia transferred the men under duress to the custody of the US government in January 2002. Ten days later, Bush used sixteen words to warn Americans that, in "cooperation" with the Bosnian government, it had captured terrorists who had planned to bomb the US embassy in Sarajevo: "Our soldiers, working with the Bosnian government, seized terrorists who were plotting to bomb our embassy," Bush told the nation.

But, six years later, the detainees’ petition says, after the US Supreme Court has sided with the detainees and ordered the US to give the detainees habeas corpus rights, the Bush administration has failed to repeat the embassy plot charges that Bush used in his State of the Union address, or to produce credible evidence of why the men should be held as enemy combatants.

It is hard to be shocked by these kind of revelations anymore, there has been so much criminal depravity on the part of the Bush/Cheney crew in relation to their torture and sadistic gulag detention programs that it just dulls the senses after a while. And it is not like we didn’t know that the case against Lakhdar Boumediene was bogus; that was evident from the prior litigation that led to the original Supreme Court Boumediene decision. The pleading containing the new allegations is here (pdf). For those of you perplexed by the title of the pleading, a "traverse" pleading is nothing more than a somewhat archaic term for a reply pleading.

The revelation that Boumediene has been, from the outset, about yet another 16 word intentional lie to the American public, and indeed the world, in the hallowed State of the Union Speech, in order to fraudulently gin up the basis for an illegal and immoral war of aggression, is heart stopping and hard to stomach. Read more →

“The Exponential Growth” of Show Trials

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Thomas Hartmann, the "legal advisor" to the Gitmo show trials who has already been forbidden from involvement with two Gitmo cases because of his bias, just failed upwards: he has been named Director of Operations for the show trials (h/t scribe).

Air Force Brig. Gen. Thomas Hartmann was named to the newly created position of director of operations, planning and development for military commissions, as the trials are called.

The new job takes Hartmann away from direct supervision of the prosecution. The former chief prosecutor, Air Force Col. Morris Davis, and others had accused the general of pushing for prosecutions that would captivate the public for political gain, even before the detainees were ready to be charged.

 The AP cites Davis, Deputy Chief Defense Counsel Michael Berrigan, and a Human Rights Watch lawyer, all saying the move of promoting Hartmann up isn’t enough–he’ll still be around to "monkey around" and taint the already tainted military commissions.

Those doubts are well-founded. Hartmann sounds like this move has only made him more determined to build a nice little show trial industry down at Gitmo.

In an interview, Hartmann put his transfer in a positive light.

"I feel like it’s an elevation, a promotion, because it recognizes … the exponential growth of the commissions," Hartmann said.

 [snip]

Hartmann said he is proud of the way he has helped move the trials forward and intends to keep doing so in his new role.

"We are not going to wilt under pressure," he said.

Goodie. After destroying our credibility overseas and ensuring the exponential collapse of our economic system, about the only growth industry coming from the Bush Administration is in show trials. 

The Gitmo Shrinks Find Their Super Ego And Cowboy Up

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As several of you have noted, there has been a rather significant event at the Gitmo Show Trials. Lt. Colonel Diane M. Zierhoffer, a US Army psychologist who ordered the illegal torture of a juvenile, Mohammad Jawad, invoked her right not to incriminate herself and refused to testify in the case of Mohammad Jawad. She took the Fifth.

Her testimony was sought by defense attorney Maj. David Frakt in a hearing on his motion to dismiss charges based upon government misconduct in using prolonged isolation, sleep deprivation, and other torture techniques against his client in an attempt to make him more pliable in interrogations. Following a month-long isolation, apparently recommended by the military psychologist, Mr. Jawad – who entered Guantánamo as a teenager — attempted suicide.

The psychologist’s testimony would have marked the first time that a member of the secretive Behavioral Science Consultation Team (known as BSCT or “biscuits”) had been called to testify in a detainee hearing. The BSCT program has been highly controversial among psychologists and other health professionals. The psychologist invoked her rights under Article 31 of the Uniform Code of Military Justice, the military equivalent of the 5th amendment right against self-incrimination/right to remain silent.

“The fact that the BSCT Psychologist now apparently recognizes that her conduct was criminal in nature is very significant,” said Maj. Frakt. “We have alleged, based on classified government records that the BSCT psychologist’s recommendation led directly to the illegal abuse and inhumane treatment of Mohammad Jawad. This invocation of the right to remain silent seems to confirm that.”

“The evidence in this case confirms our worst fears, that military psychologists are working to break down detainee’s psyches,” said Dr. Stephen Soldz, an expert psychologist who had been called by Maj. Frakt to testify that the BSCT psychologist had violated the professional credo of “Do no harm.”

Zierhoffer’s, and her fellow colleagues in the BSCT biscuit brigade, apparently have an operational definition of "Do no harm" with which I am not familiar. It would appear that "Do no harm" is fully operational as to her own self interest, but not to the humane interests of the powerless vulnerable souls she, and they, are ethically and morally obligated to protect.

The relevant professional association, the American Psychological Association (APA), has been having a fairly interesting internal discussion on how stridently the group will disapprove and sanction the gross ethical failings of the biscuit Read more →

Tortured Confession Evidence Tossed In First Day Of Hamdan Trial

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The Bushco Torture Brigade is on a bad luck streak in dancing school. Four beatdowns by the Supreme Court on the legality/Constitutionality of their torture and trial program is beyond bad. Four drubbings of this type for a Presidential Administration, during a supposed time of war, is simply unheard of.

When Bushco got the ruling late last week that they could proceed with their first gulag trial against Salim Hamdan, they were ecstatic. Smug in the self satisfaction that the first show trial, of the many they have been pining for, would not be further delayed, Hamdan was rushed to the Guantanamo dock and the trial commenced this morning. So far, so good.

But wait, there’s more; and it’s not good for Bushco’s cherished show trial dreams. Not even one full day into the show, and even the hand selected military judge, Keith Allred, is sending Bushco up the proverbial creek without their torture evidence paddle. From the CBC:

Judge Keith Allred, the navy captain presiding at the trial, decided Monday to bar evidence obtained from Hamdan by interrogators under “highly coercive” conditions in Afghanistan, saying prosecutors cannot use statements he made shortly after his capture at the Bagram air base and Panshir in Afghanistan.

Hamdan has said he endured beatings and solitary confinement at those locations.

The judge left the door open for the prosecution to use other statements Hamdan gave elsewhere in Afghanistan and at Guantanamo.

Michael Berrigan, the deputy chief defence counsel, described the ruling as a major blow to the tribunal system that allows hearsay and evidence obtained through coercion.

“It’s a very significant ruling because these prosecutions are built to make full advantage of statements obtained from detainees,” he said.

Berrigan is exactly right, this is a major blow. And it is a blow with far reaching consequences too, because it sets the tone, in an absolutely blistering manner, for the considerations on the Habeas petitions about to be considered by Royce Lamberth’s designated judge, Tom Hogan. What will the government do now? Ah, well…

Prosecutors are considering whether to appeal the judge’s ruling — a development that could halt the trial of Salim Hamdan that began earlier Monday after years of delays and legal setbacks.

“We need to evaluate … to what extent it has an impact on our ability to fully portray his criminality in this case, but also what it might set out Read more →

Comments on Mukasey’s Call for an Election-Season Showdown

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Just as a follow-up to this post, a couple of official comments.

From DC District Court Chief Judge Royce Lamberth, who has already set into motion an expedited process for the detainees:

I am pleased that Attorney General Mukasey said that our ‘court should be commended for the preliminary steps it has taken thus far to provide for the fair, efficient, and prompt adjudication of these cases.’ Guidance from Congress on these difficult subjects is, of course, always welcome. Because we are on a fast track, however, such guidance sooner, rather than later, would certainly be most helpful.

From Harry Reid:

As a result of its repeated efforts to circumvent the requirements of the Geneva Conventions and the Constitution, the Bush administration has yet to bring to justice the perpetrators of the terrorist attacks of September 11. If legislation is needed, it is important that Congress proceed in a deliberate and thoughtful way to write rules that will not be thrown out by the courts yet again. Congress must hold public hearings, consult with national security and legal experts, and take the time to get this right. It is hard to imagine that Congress can give this complex issue the attention it deserves in the closing weeks of this legislative session.

The courts are well equipped to handle this situation, and there is no danger that any detainee will be released in the meantime.

From Patrick Leahy:

The Supreme Court’s 5-4 decision in Boumediene v. Bush last month reaffirmed our core American values by concluding that detainees at Guantanamo have the right to bring habeas corpus claims in federal court. I applauded that decision because I have maintained from the beginning that the provisions of the Military Commission Act that purported to strip away those rights were unconstitutional and un-American.

The Judiciary Committee has held a wide range of hearings on issues of detainee rights and procedures. Attorney General Mukasey’s call today for Congress to create new rules for these habeas proceedings is the first I have heard from the Administration on this issue. Given the Judiciary Committee’s long interest in this subject, it is regrettable that the Attorney General neither consulted with nor informed the Committee about this request before his speech.

The Courts have a long history of considering habeas petitions and of handling national security matters, including classified information. Read more →

Mukasey Asks Congress to Resolve Boumediene Issues Instead of Courts

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Boy, for a guy who was, not long ago, an Article III Court judge, Attorney General Mukasey sure has scant respect for Federal judges. In a speech to AEI today, Mukasey calls on Congress to get the Administration out of its most difficult quandries as a result of the Boumediene decision. Here’s an excerpt from his speech, with my editorializing:

First, and most important, Congress should make clear that a federal court may not order the Government to bring enemy combatants into the United States. There are more than 200 detainees remaining at Guantanamo Bay, and many of them pose an extraordinary threat to Americans; many already have demonstrated their ability and their desire to kill Americans. As a federal judge, I presided over a prominent terrorism-related trial, and the expense and effort required to provide security before, during, and after the trial were staggering. Simply bringing a detainee into the United States for the limited purpose of participating in his habeas proceeding would require extraordinary efforts to maintain the security of the site. To the extent detainees need to participate personally, technology should enable them to do so by video link from Guantanamo Bay, which is both remote and safe.

Far more critically, although the Constitution may require generally that a habeas court have the authority to order release, no court should be able to order that an alien captured and detained abroad during wartime be admitted and released into the United States.

I love (as in, despise) the way Attorney General Orwell uses court security costs to rationalize indefinite detention even after Boumediene. His logic: if we bring an "enemy combatant" into the States, it’ll cost a lot. So "enemy combatants" can’t face their accusers in DC District Court. And that means that an "alien captured and detained abroad during wartime" cannot be released into the US. Of course, if it came to the point of releasing someone, that would be because the US could not prove that, in spite of the fact the person had been held as an "enemy combatant" for up to 7 years, once that person finally had a habeas review, a Court decided he was not, in fact, an "enemy combatant" but instead someone the government probably shouldn’t have been holding. Some might call that a "mistake"–a very ugly, costly mistake. Read more →